United States Court of Appeals,
Fifth Circuit.
No. 91–7363
Summary Calendar.
Walter W. JOHNSON, Plaintiff-Appellant,
v.
MERRELL DOW PHARMACEUTICALS, INC. and Dow Chemical Co., Defendant-Appellee.
July 10, 1992.
Appeal from the United States District Court For the Northern District of Texas.
Before JOLLY, DAVIS, and SMITH, Circuit Judges.
PER CURIAM:
Walter W. Johnson, a former salesman for Merrell Dow Pharmaceuticals, Inc., appeals the
dismissal of his claim for intentional infliction of emotional distress against Merrell Dow on summary
judgment. The district court found that the conduct Johnson describes was not extreme and
outrageous and did not cause Johnson to suffer severe emotional distress. We agree and affirm.
I.
Walter Johnson went to work as a sales representative for Merrell–National Laboratories, a
division of Richardson–Merrell, Inc., in April 1976. Richardson–Merrell, Inc. was later renamed
Merrell Dow Pharmaceuticals, Inc., (Merrell Dow), and is a wholly owned subsidiary of Dow
Chemical Co., (Dow). At all relevant times Johnson was an "at-will" employee. Merrell Dow
terminated Johnson in July 1988.
Johnson filed this suit for intentional infliction of emotional distress and wrongful termination.
Johnson's claims are based on an alleged course of harassing conduct against him by his supervisors
that culminated in his termination. He theorizes that the harassment was in retaliation for his
questioning some business practices of the company and his decision to testify in favor of a former Merrell Dow employee in that employee's suit against the company.
Because this case was decided on summary judgment, the acts that Johnson recites as the
basis for his intentional infliction of emotional distress claim will be described in the light most
favorable to Johnson, the nonmoving party. Johnson's problems started when Gena Reed was
assigned as his Division Manager. According to Johnson, Reed was extremely hostile to him,
constantly criticized him and threatened him with termination on numerous occasions. Reed filled
out a Counseling Report which was marked as a "first warning" before termination. Johnson read
this document as placing him on probation for an indefinite period. He complains that he was given
no information as to how he could rectify his tenuous employment status. Reed realigned Johnson's
sales territory four or five times in little over a year, assigning him less productive and less lucrative
areas. She then criticized his ability to get his territories organized. On one occasion, Reed removed
a $30,000 sale from Johnson's credits. The two also had numerous disputes over his record keeping
and reporting; Johnson claims that she would not listen to his explanations for low sales call reports.
After Reed, Johnson worked for a series of Division Managers who treated him in a similar
manner. Dave Kollman threatened him with termination when a physician reported that Johnson had
left samples without obtaining the required signature. Kollman did not tell Johnson about the
complaint until after 5 p.m. when the doctor's office was closed and then ordered Johnson to stay out
of the dispute. It was later discovered that another doctor sharing the same office space had provided
the required signature. Russ Graham, who terminated Johnson, told Johnson that he did not fit in
with the company and suggested that he might be happier in another job. The Regional Manager, Pat
Williams, also threatened to fire Johnson on several occasions and told Johnson that he was being
disloyal to the company by maintaining a friendship with Gene Bruce, the employee on whose behalf
Johnson agreed to testify.
Johnson eventually began to suffer fro m psychiatric problems and was placed on disability leave from Merrell Dow. While he was out sick, Graham called him on a weekly basis, asking if he
was still sick and telling him that his disability was hurting the company. While Johnson was still on
disability, Graham called Johnson and in an upbeat voice, asked him to come to a meeting to discuss
his future with the company. When Johnson arrived for the meeting with Graham and Williams, he
was promptly fired. Graham and Williams had planned the termination as evidenced by a letter sent
to Johnson's psychiatrist warning him of the impending action. One of the two shoved a counseling
packet at Johnson and demanded the keys to his company car. When Johnson asked how he would
continue his treatment, they told him he no longer had company insurance. Johnson also alleges that
someone with Merrell Dow told his current employer that Johnson had been under psychiatric care.
On Merrell Dow's motion for summary judgment, the district court dismissed both of
Johnson's causes of action. The court found that the facts Johnson adduced were not sufficient to
support the claim for intentional infliction of emotional distress. This appeal followed.
II.
To prevail on a claim for intentional infliction of emotional distress, Texas law requires the
plaintiff to prove the following: (1) that the defendant acted intentionally or recklessly, (2) that the
defendant's conduct was extreme and outrageous, (3) that the actions of the defendant caused the
plaintiff emotional distress, and (4) that the emotional distress suffered was severe. Tidelands Auto
Club v. Walters, 699 S.W.2d 939, 942 (Tex.App.—Beaumont, 1985, writ ref'd, n.r.e.).
"Extreme and outrageous" conduct is difficult to define. In Dean v. Ford Motor Credit Co.,
885 F.2d 300 (5th Cir.1989), we stated that:
[l]iability [for outrageous conduct] has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community ...
Id. at 306 (citing Restatement (Second) of Tort s § 46, Comment d (1965)). Liability "does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Rest.
(Second) of Torts § 46.
Specifically in the employment context, this court applying Texas law has repeatedly stated
that a claim for intentional infliction of emotional distress will not lie for mere "employment disputes."
The range of behavior covered in "employment disputes" is quite broad and covers most of the
conduct complained of by Johnson. For example, in Wilson v. Monarch Paper Co., 939 F.2d 1138
(5th Cir.1991), a combination age discrimination and emotional distress case, the plaintiff was
relieved of his physical distribution duties and assigned to be supervisor of a warehouse. His manager
refused to speak to him and other managers would not work with him. His co-workers referred to
him as old. We held that all of this conduct was "within the realm of an ordinary employment
dispute." Id. at 1145, (internal citations omitted). Similarly, in Dean, we concluded that the plaintiff's
complaints of extra work, "special" reviews to downgrade her performance, and frequent transfers
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United States Court of Appeals,
Fifth Circuit.
No. 91–7363
Summary Calendar.
Walter W. JOHNSON, Plaintiff-Appellant,
v.
MERRELL DOW PHARMACEUTICALS, INC. and Dow Chemical Co., Defendant-Appellee.
July 10, 1992.
Appeal from the United States District Court For the Northern District of Texas.
Before JOLLY, DAVIS, and SMITH, Circuit Judges.
PER CURIAM:
Walter W. Johnson, a former salesman for Merrell Dow Pharmaceuticals, Inc., appeals the
dismissal of his claim for intentional infliction of emotional distress against Merrell Dow on summary
judgment. The district court found that the conduct Johnson describes was not extreme and
outrageous and did not cause Johnson to suffer severe emotional distress. We agree and affirm.
I.
Walter Johnson went to work as a sales representative for Merrell–National Laboratories, a
division of Richardson–Merrell, Inc., in April 1976. Richardson–Merrell, Inc. was later renamed
Merrell Dow Pharmaceuticals, Inc., (Merrell Dow), and is a wholly owned subsidiary of Dow
Chemical Co., (Dow). At all relevant times Johnson was an "at-will" employee. Merrell Dow
terminated Johnson in July 1988.
Johnson filed this suit for intentional infliction of emotional distress and wrongful termination.
Johnson's claims are based on an alleged course of harassing conduct against him by his supervisors
that culminated in his termination. He theorizes that the harassment was in retaliation for his
questioning some business practices of the company and his decision to testify in favor of a former Merrell Dow employee in that employee's suit against the company.
Because this case was decided on summary judgment, the acts that Johnson recites as the
basis for his intentional infliction of emotional distress claim will be described in the light most
favorable to Johnson, the nonmoving party. Johnson's problems started when Gena Reed was
assigned as his Division Manager. According to Johnson, Reed was extremely hostile to him,
constantly criticized him and threatened him with termination on numerous occasions. Reed filled
out a Counseling Report which was marked as a "first warning" before termination. Johnson read
this document as placing him on probation for an indefinite period. He complains that he was given
no information as to how he could rectify his tenuous employment status. Reed realigned Johnson's
sales territory four or five times in little over a year, assigning him less productive and less lucrative
areas. She then criticized his ability to get his territories organized. On one occasion, Reed removed
a $30,000 sale from Johnson's credits. The two also had numerous disputes over his record keeping
and reporting; Johnson claims that she would not listen to his explanations for low sales call reports.
After Reed, Johnson worked for a series of Division Managers who treated him in a similar
manner. Dave Kollman threatened him with termination when a physician reported that Johnson had
left samples without obtaining the required signature. Kollman did not tell Johnson about the
complaint until after 5 p.m. when the doctor's office was closed and then ordered Johnson to stay out
of the dispute. It was later discovered that another doctor sharing the same office space had provided
the required signature. Russ Graham, who terminated Johnson, told Johnson that he did not fit in
with the company and suggested that he might be happier in another job. The Regional Manager, Pat
Williams, also threatened to fire Johnson on several occasions and told Johnson that he was being
disloyal to the company by maintaining a friendship with Gene Bruce, the employee on whose behalf
Johnson agreed to testify.
Johnson eventually began to suffer fro m psychiatric problems and was placed on disability leave from Merrell Dow. While he was out sick, Graham called him on a weekly basis, asking if he
was still sick and telling him that his disability was hurting the company. While Johnson was still on
disability, Graham called Johnson and in an upbeat voice, asked him to come to a meeting to discuss
his future with the company. When Johnson arrived for the meeting with Graham and Williams, he
was promptly fired. Graham and Williams had planned the termination as evidenced by a letter sent
to Johnson's psychiatrist warning him of the impending action. One of the two shoved a counseling
packet at Johnson and demanded the keys to his company car. When Johnson asked how he would
continue his treatment, they told him he no longer had company insurance. Johnson also alleges that
someone with Merrell Dow told his current employer that Johnson had been under psychiatric care.
On Merrell Dow's motion for summary judgment, the district court dismissed both of
Johnson's causes of action. The court found that the facts Johnson adduced were not sufficient to
support the claim for intentional infliction of emotional distress. This appeal followed.
II.
To prevail on a claim for intentional infliction of emotional distress, Texas law requires the
plaintiff to prove the following: (1) that the defendant acted intentionally or recklessly, (2) that the
defendant's conduct was extreme and outrageous, (3) that the actions of the defendant caused the
plaintiff emotional distress, and (4) that the emotional distress suffered was severe. Tidelands Auto
Club v. Walters, 699 S.W.2d 939, 942 (Tex.App.—Beaumont, 1985, writ ref'd, n.r.e.).
"Extreme and outrageous" conduct is difficult to define. In Dean v. Ford Motor Credit Co.,
885 F.2d 300 (5th Cir.1989), we stated that:
[l]iability [for outrageous conduct] has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community ...
Id. at 306 (citing Restatement (Second) of Tort s § 46, Comment d (1965)). Liability "does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Rest.
(Second) of Torts § 46.
Specifically in the employment context, this court applying Texas law has repeatedly stated
that a claim for intentional infliction of emotional distress will not lie for mere "employment disputes."
The range of behavior covered in "employment disputes" is quite broad and covers most of the
conduct complained of by Johnson. For example, in Wilson v. Monarch Paper Co., 939 F.2d 1138
(5th Cir.1991), a combination age discrimination and emotional distress case, the plaintiff was
relieved of his physical distribution duties and assigned to be supervisor of a warehouse. His manager
refused to speak to him and other managers would not work with him. His co-workers referred to
him as old. We held that all of this conduct was "within the realm of an ordinary employment
dispute." Id. at 1145, (internal citations omitted). Similarly, in Dean, we concluded that the plaintiff's
complaints of extra work, "special" reviews to downgrade her performance, and frequent transfers
were also insufficient to support a claim for intentional infliction of emotional distress. 885 F.2d at
304–05, 306–07.
Most of the acts complained of by Johnson "fall within the realm of an ordinary employment
dispute." Wilson. In order to properly manage its business, an employer must be able to supervise,
review, criticize, demote, transfer and discipline employees. Not all of these processes are pleasant
for the employee. Neither is termination. However, there is no indication that Johnson is anything
other than an at-will employee. An employer will not be held liable for exercising its legal right to
terminate an employee, "even though he is well aware that such [action] is certain to cause emotional
distress." Diamond Shamrock Ref. and Mktg. Co. v. Mendez, 809 S.W.2d 514, 522 (Tex.App.—San
Antonio 1991, writ granted on other grounds). Merrell Dow was within its rights to terminate
Johnson, even though he was suffering from psychiatric disability.
The o nly act that Johnson lists as extreme and outrageous behavior that falls outside of a nonactionable employment dispute is his allegation that someone at Merrell Dow told his current
employer that he had been under psychiatric care. This factually accurate report does not rise to the
level of extreme and outrageous behavior. Compare Dean, (Employer planted company checks on
plaintiff to make it appear that she was stealing from the company.); Wilson, (Plaintiff was demoted
from Vice–President and Assistant to the President of the company to an entry level warehouse
supervisor po sition whose main duties were janitorial.); Casas v. Wornick Co., 818 S.W.2d 466
(Tex.App.—Corpus Christi 1991) (Plaintiff was fired for refusing to misrepresent facts to government
auditors, was escorted off premises out by a security guard in the presence of her co-workers and told
she had five minutes to leave the premises.)
Because we affirm the district court's judgment on this basis, we need not address defendants'
alternate arguments regarding the statute of limitations and First Amendment concerns.
AFFIRMED.